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AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Employee Retention Agreement

AMENDED AND RESTATED EMPLOYMENT AGREEMENT | Document Parties: SABA SOFTWARE INC You are currently viewing:
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SABA SOFTWARE INC

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Title: AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Governing Law: California     Date: 4/8/2009
Industry: Software and Programming     Sector: Technology

AMENDED AND RESTATED EMPLOYMENT AGREEMENT, Parties: saba software inc
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EXHIBIT 10.15

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

This Amended and Restated Employment Agreement (the “Agreement”) is entered into as of April 8, 2009 (the “Effective Date”) by and between Peter E. Williams III (“Executive”) and Saba Software, Inc., a Delaware corporation (the “Company”), and amends and restates in its entirety that Employment Agreement dated as of February 1, 2006 and that Amendment to Employment Agreement dated as of July 12, 2007 (as amended, the “Existing Agreement”).

R E C I T A L S

A . Executive and the Company entered into the Existing Agreement to set forth the terms of Executive’s employment with the Company.

B. The Company believes that maintaining sound management is essential to protect and enhance the best interests of the Company and its stockholders.

C. The Company desires assurance of the continued association and services of Executive in order to retain Executive’s experience, skills, abilities, background and knowledge, and is willing to engage Executive’s services on the terms and conditions set forth in this Agreement.

E. Executive desires to continue to be in the employ of the Company, and is willing to accept such employment on the terms and conditions set forth in this Agreement.

F. Executive and the Company desire to amend and restate the Existing Agreement upon the terms and conditions more fully set forth herein.

A G R E E M E N T

NOW, THEREFORE, based on the foregoing recitals and in consideration of the commitments set forth below, Executive and the Company agree as follows:

 

1.

Term, Position, Duties and Responsibilities

1.1. Term . The Company hereby employs Executive to render services to the Company in the position of Executive Vice President, Corporate Development, reporting directly to the Chief Executive Officer of the Company, for the period commencing on the Effective Date and ending on the date Executive’s employment is terminated under this Agreement (the “Term”). The Company and Executive hereby acknowledge that either of them may terminate Executive’s term of Employment for any reason or no reason at all.

1.2. Position . The duties of this position shall include such duties and responsibilities as are reasonably assigned to Executive by the Chief Executive Officer, including but not limited to those customarily performed by executive vice presidents, corporate development of similarly situated corporations. Executive agrees to serve in a similar capacity for the benefit of any of the Company’s direct or indirect, wholly-owned or partially-owned subsidiaries or affiliates. Additionally, Executive shall serve in such other capacity or capacities


as the Chief Executive Officer may from time to time prescribe. During his employment by the Company, Executive shall, subject to Section 1.3, devote his full energies, interest, abilities and productive time to the proper and efficient performance of his duties under this Agreement.

1.3. Other Activities . Except upon the prior written consent of the Chief Executive Officer of the Company, Executive will not (i) accept any other employment, or (ii) engage, directly or indirectly, in any other business activity (whether or not pursued for pecuniary advantage) that is or may be in conflict with, or that might place Executive in a conflicting position to that of, the Company. Notwithstanding the foregoing, Executive shall be permitted to engage in occasional professional or charitable activities outside the scope of his employment with the Company so long as such activities (A) do not conflict with the actual or proposed business of the Company or any of its subsidiaries or affiliates, and (B) do not affect the performance of his duties hereunder. In addition, subject to the prior written consent of the Chief Executive Officer and the Board of Directors of the Company and subject to Executive’s fiduciary duties to the Company, Executive shall be permitted to serve as a director of other corporations provided that their businesses are not competitive with the actual or proposed business of the Company or any of its subsidiaries or affiliates and provided further that Executive’s service as a director of such other corporations does not interfere with his performance of his duties hereunder. Any such prior written consent may be subsequently revoked in the event that the Board of Directors determines, in good faith, that Executive’s position as a director of any such other corporation has developed into a conflict of interest.

1.4. Proprietary Information . Executive recognizes that his employment with the Company will involve contact with information of substantial value to the Company, which is not generally known in the trade, and which gives the Company an advantage over its competitors who do not know or use it. Executive has previously executed and delivered to the Company, a copy of the Company’s standard form of Employee Proprietary Information and Inventions Agreement (the “Employee Proprietary Information and Inventions Agreement”).

 

2.

Compensation of Executive

2.1. Base Salary . In consideration of the services to be rendered under this Agreement, while employed by the Company, Company shall pay Executive an initial base annual salary of two hundred sixty-five thousand dollars ($265,000.00), less standard deductions and withholdings, payable in regular periodic payments in accordance with Company payroll policy. Such salary shall be prorated for any partial month of employment on the basis of a 30-day fiscal month. Such base salary shall be subject to annual review by the Board of Directors in consultation with the Chief Executive Officer.

2.2. Bonus . Executive will be eligible to receive bonuses totaling 50% of his base salary annually (such annual amount, the “Target Bonus”), the exact amount of each such bonus to be determined by the Board of Directors in consultation with the Chief Executive Officer based upon Executive achieving certain performance criteria and the Company achieving specific financial goals, in each case to be determined by the Board of Directors in consultation with the Chief Executive Officer. Any such bonus shall be payable at the direction of the Board of Directors either after the end of the fiscal year or quarterly after the end of each fiscal quarter,

 

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and shall be prorated for partial fiscal periods. Such bonuses shall in no event be paid later than 2  1 / 2 months after the close of the Company’s fiscal year in which such bonus was earned. In addition, Executive shall be eligible for such additional bonuses as may be awarded by the Board of Directors in its sole discretion from time to time in consultation with the Chief Executive Officer.

2.3. Stock Option . Executive has been and may in the future be granted stock options to purchase shares of the Company’s Common Stock at the market price in effect on the date the Board of Directors approves the grant pursuant to the Company’s standard form of Stock Option Agreement to be entered into by and between Executive and the Company (the “Stock Option Agreement”). Unless otherwise agreed by the Board, future stock options will vest over the course of four (4) years in 16 equal quarterly installments. Notwithstanding anything set forth in any existing stock options or, unless any future stock option contains language expressly modifying the provisions of this Agreement, any future stock options, the following additional provisions shall apply:

(a) Executive shall have until the first to occur of the following to exercise any stock option held by Executive on the date of termination of Executive’s employment: (i) the expiration of the maximum term of such option, (ii) the termination of the option in connection with a Change in Control or similar event as provided in the applicable option agreement and/or plan under which the option was granted, or (iii) six (6) months from the date of termination of Executive’s employment.

(b) Immediately prior to the specified effective date of a Change of Control (as defined below) pursuant to which a portion of any stock option is neither Assumed (as defined below) nor Replaced (as defined below), such portion of the stock option that is neither Assumed nor Replaced shall automatically become fully vested and exercisable for all of the shares at the time represented by such portion of the stock option; provided that Executive’s employment has not terminated. In such event, to the extent not exercised prior to the consummation of such Change of Control, such portion of the stock option shall terminate upon closing of the Change of Control pursuant to the terms of the Company’s applicable Stock Incentive Plan. For the purpose of this Section, the terms below shall have the following meanings:

“Assumed” means that pursuant to a Change of Control either (i) the stock option is expressly affirmed by the Company or (ii) the contractual obligations represented by the stock option are expressly assumed (and not simply by operation of law) by the successor entity or its parent in connection with the Change of Control with appropriate adjustments to the number and type of securities of the successor entity or its parent subject to the stock option and the exercise or purchase price thereof which at least preserves the compensation element of the stock option existing at the time of the Change of Control as determined in accordance with the instruments evidencing the agreement to assume the stock option.

 

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“Replaced” means that pursuant to a Change of Control the stock option is replaced with a comparable stock award or a cash incentive program of the Company, the successor entity (if applicable) or parent of either of them which preserves the compensation element of such Award existing at the time of the Change of Control and provides for subsequent payout in accordance with the same (or a more favorable) vesting schedule applicable to such stock option.

2.4. Benefits . Executive shall be entitled to participate in the Company’s group medical, dental, life insurance, 401(k), deferred compensation or other benefit plans and programs on the same terms and conditions as other members of the Company’s senior executive management. Executive shall be provided such perquisites of employment, including at least four (4) weeks paid vacation, and all paid holidays and sick leave as are provided to all other members of the Company’s senior executive management. Executive shall be entitled to reimbursement of all reasonable expenses incurred by Executive in the performance of his duties hereunder, in accordance with the policies and procedures established by the Company from time to time, and as may be amended from time to time.

 

3.

Employment At Will

Company or Executive may terminate Executive’s employment with Company at any time for any reason, including no reason at all, notwithstanding anything to the contrary contained in or arising from any statements, policies, or practices of Company relating to the employment, discipline, or termination of its employees. This at-will employment relationship cannot be changed except in writing signed by a duly authorized officer of the Company other than Executive. This Section 3 shall survive any termination or expiration of this Agreement.

 

4.

Termination of Employment

4.1. Intentionally Omitted .

4.2. Termination by the Company for Cause . In the event that the Company terminates Executive’s employment for Cause, the Company shall pay Executive all base salary due and owing and all other accrued but unpaid benefits (e.g., accrued vacation) through the last day actually worked and thereafter the Company’s obligations under this Agreement shall terminate. For the purposes of this Agreement, termination shall be for “Cause” if (i) Executive refuses or fails to act in accordance with any lawful order or instruction of the Chief Executive Officer, and such refusal or failure to act has not been cured within 30 days of notice of such disobedience, (ii) Executive fails to devote reasonable attention and time during normal business hours to the business affairs of the Company or Executive is reasonably determined by the Board of Directors to have been unfit (other than as a result of an Incapacity), unavailable for service (other than as a result of an Incapacity) or grossly negligent in connection with the performance of his duties on behalf of the Company, which unfitness, unavailability or gross negligence has not been cured within 30 days of notice of the same; (iii) Executive is reasonably determined by the Board of Directors to have committed a material act of dishonesty or willful misconduct or to have acted in bad faith to the material detriment of the Company in connection with the

 

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performance of his duties on behalf of the Company; (iv) Executive is convicted of a felony or other crime involving dishonesty, breach of trust, moral turpitude or physical harm to any person, or (v) Executive materially breaches any agreement with the Company which breach has not been cured within 30 days notice of the same. For purposes of this Agreement, the term “without Cause” shall mean termination of Executive’s employment for reasons other than for “Cause.”

4.3. Termination by the Company without Cause or Termination by Executive . In the event that the Company terminates Executive’s employment without Cause or Executive terminates his employment for any reason or no reason at all, and in either case a Separation (as defined below) occurs, the Company shall pay Executive all base salary due and owing and all other accrued but unpaid benefits (e.g., accrued vacation) through the last day actually worked, and Executive shall be entitled to receive the severance payments and benefits set forth below in this Section 4.3; provided, however, that such severance and benefits are conditioned on Executive’s execution and non-revocation of a release agreement, the form of which is attached hereto as Exhibit A , and thereafter the Company’s obligations under this Agreement shall terminate. Executive shall execute and return such release agreement no later than sixty (60) days from the date of Executive’s Separation (the “Release Date”). For purposes of this Agreement,

The term “Separation” shall mean a “separation from service,” as defined in the regulations under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”);

Termination shall be for “Good Reason” if (i) there is a material diminution of Executive’s responsibilities with the Company, or a material change in Executive’s reporting responsibilities or title, in each case without Executive’s consent; (ii) there is a material reduction by the Company in Executive’s annual base salary or target compensation then in effect without Executive’s consent; (iii) Executive’s principal work location is relocated outside of the San Francisco Bay Area without Executive’s consent or (iv) there is a Change of Control. Executive agrees that he may be required to travel from time to time as required by the Company’s business and that such travel shall not constitute grounds for Executive to terminate his employment for Good Reason. A condition shall not be considered “Good Reason” unless Executive gives the Company written notice of such condition within ninety (90) days after such condition comes into existence and the Company fails to remedy such condition within thirty (30) days after receiving Executive’s written notice (if capable of remedy).

“Change of Control” means the occurrence of any of the following events:

(i) The sale, exchange, lease or other disposition or transfer of all or substantially all of the consolidated assets of the Company to a person or group (as such terms are defined or described in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) which will continue the business of the Company in the future; or

 

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(ii) A merger or consolidation involving the Company in which the shareholders of the Company immediately prior to such merger or consolidation are not the beneficial owners (within the meaning of Rules 13d-3 and 13d-5 promulgated under the Exchange Act) of more than 50% of the total voting power of the outstanding voting securities of the corporation resulting from such transaction in substantially the same proportion as their ownership of the total voting power of the outstanding voting securities of the Company immediately prior to such merger or consolidation; or

(iii) The acquisition of beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 promulgated under the Exchange Act) of at least 50% of the total voting power of the outstanding voting securities of the Company by a person or group (as such terms are defined or described in Sections 3(a)(9) and 13(d)(3) of the Exchange Act).

4.3.1. Target Bonus and Base Salary . On the date of the termination of Executive’s employment, the Company shall pay to Executive, or to Executive’s beneficiaries or estate as appropriate, in a single lump-sum payment, subject to standard deductions and withholdings, Executive’s Target Bonus for any partially completed bonus period, as if the applicable performance criteria and Company financial goals had been achieved completely, pro rated based on the number of days actually elapsed through the date of termination in the bonus period in which such termination occurs. In addition, the Company shall pay to Executive, or to Executive’s beneficiaries or estate, as appropriate, the sum of (i) an amount equal to that number of months of Executive’s then current base salary equal to the sum of six (6) months plus one month for every twelve month period Executive has been employed by the Company prior to the date of termination (which sum shall not exceed twelve (12) months) (collectively, the “Severance Months”), and (ii) an amount equal to the product of (x) the quotient of the number of Severance Months divided by 12, and (y) the Target Bonus amount (the “Bonus Severance Amount”), less all applicable standard deductions and withholdings. Such amounts payable in the preceding sentence shall be payable in the form of salary continuation (with amounts attributable to the Target Bonus prorated monthly). Subject to timely receipt by the Company of the executed release agreement, the first payment of any such salary continuation shall be made within ten (10) days after the Release Date and shall include any salary continuation payments (including amounts attributable to the Target Bonus) that accrued to Executive post-termination of employment but that were not paid pending receipt of the executed release agreement.

4.3.2. Acceleration of Vesting of Stock Option .

(a) With respect to stock options granted to Executive prior to July 12, 2007, on the date of termination of Executive’s employment, 100% of the shares subject to any stock option then held by Executive, including without limitation, the options described in Section 2.3, shall vest and become immediately exercisable. In addition, notwithstanding the terms of any option award or agreement to the contrary, Executive shall have until the first to occur of the following to exercise any stock option held by Executive on the date of termination of Executive’s employment: (i) the expiration of the maximum term of such option, (ii) the termination of the

 

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option in connection with a Change in Control or similar event as provided in the applicable option agreement and/or plan under which the option was granted, or (iii) three (3) years from the date of termination of Executive’s employment.

(b) With respect to stock options granted to Executive after July 12, 2007, in the event that Executive’s employment with the Company is terminated by the Company without Cause or by Executive for Good Reason, 100% of the shares subject to any stock option then held by Executive, including without limitation, the options described in Section 2.3, shall vest and become immediately exercisable.

4.3.3. Group Medical Coverage . The Company shall, following the Executive’s timely election, provide the Executive with continued coverage for one year after termination of Executive’s employment under the Company’s group health insurance plans in effect upon termination of Executive’s employment without Cause or for Good Reason in accordance with the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), at no cost to Executive. If COBRA or similar benefits are not available by law during any portion of the remainder of such one year period, then the Company shall pay Executive each mon


 
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